Research On Application Of Exemption Clauses In Insurance Format Contract

With the development of social economy,the insurance industry has entered the public life and developed rapidly.In today’s economic activities,insurance has been regarded as the best tool to resist and prevent risks.With the increasingly frequent transactions in the insurance market,people begin to pursue the transaction efficiency of insurance products.In order to reuse contract terms,most insurance companies pre-draft standard contracts to reduce transaction costs,and pre-set exemption clauses in the content of standard contracts,so as to allocate or transfer risks before transaction.However,insurance disputes often occur.It is easy for the policyholder to get insurance,but it is very difficult to get compensation from the insurance company,which seriously affects the public’s trust in the insurance company.Various insurance dispute cases occur frequently in the insurance industry,a large part of which are caused by the exemption clause in the insurance form contract.As an indispensable part of the insurance form contract,the escape clause is very important to the interests of both parties.If the exemption clause is set up reasonably,it can give full play to its positive role of controlling operating costs,preventing moral hazard and balancing the rights and obligations between the two parties.Otherwise,it will damage the vital interests of both parties to the insurance form contract,and may threaten the healthy development of the whole insurance market.In 2009,the "Insurance Law of the People’s Republic of China" has made great progress compared with the "Insurance Law" implemented in 2003.However,due to the rapid development of the insurance industry,some of the provisions of the disclaimer clauses have been unable to keep up with the pace of the development of The Times,resulting in the number of insurance dispute cases caused by the disclaimer clauses of the insurance form contract has been high.The main dispute centers on the application of the exemption clause.To grasp the definition and scope of the exemption clause of insurance form contract is the prerequisite for the judge to decide whether the insurer should bear insurance liability.Article 17,paragraph 2 of our country "Insurance Law" defines the disclaimer clause as "the clause exempting the underwriter’s liability".This ambiguous expression leads to great disagreement between academic and practical circles on whether the insurance form contract clause is the disclaimer clause,and how to define the scope of the disclaimer clause.Therefore,in order to further explore the problems existing in the application process of the exemption clause of insurance form contract,we should first start from the concept of the exemption clause,focus on the analysis of the connotation and extension of the exemption clause of insurance form contract,analyze the legitimacy of the exemption clause from the legal perspective,and explore the value measurement and interest bias of the lawmakers to the exemption clause.By selecting 165 retrial cases for empirical analysis,according to the results of the retrial court and the conflicts between the courts of trial,the theoretical differences and practical disputes are combined.It is concluded that there are some problems in the specific application process of the exemption clause of insurance form contract,such as the vague definition of scope,the lack of operability of the rules for the performance of the obligation of prompt and explicit explanation,the confusion of validity judgment rules,the abuse of dispute interpretation methods,which lead to the confusion of judicial judgment of exemption clause of insurance form contract,and the serious phenomenon of different judgments in the same case nationwide.In view of the above problems in theory and judicial practice,this paper tries to put forward four suggestions for improvement: first,clearly define the scope of exemption clauses in insurance form contract.By referring to the latest provisions of standard clauses in the Civil Code of the People’s Republic of China and combining with the characteristics of the Insurance Law,it is made clear that the contents of the liability exemption chapter in the standard insurance contract and the clauses distributed in other chapters,such as the exemption or reduction of the insurer’s liability,which have a significant interest relationship with the other party belong to the category of exemption clause.The second is to specify the rules for the performance of the prompt and the obligation.According to the different nature of the exemption clause and the difference of the insurance applicant,more unified rules should be formulated from the subject,way and standard of the insurer to perform the obligation,and combined with the legislative experience of other countries or regions,to establish the cooling-off period system;The third is to construct the validity judgment rules of the exemption clause of insurance form contract.By clarifying the logic between the laws on exemption clauses in the Insurance Law,the validity form of exemption clauses is readjured and the validity criterion is formulated.The fourth is to improve the dispute interpretation method of exemption clause of insurance form contract.It clarifies the application requirements of the adverse interpretation principle and introduces the reasonable expectation principle to provide a perfect interpretation method for the dispute exemption clause.